United States, Department of Justice, Federal Bureau of Prisons, United States Penitentiary, Marion, Illinois (Agency) and American Federation of Government Employees, Local 2343, Council of Prison Locals, Council 33, (Union)

[ v61 p765 ]

61 FLRA No. 154

UNITED STATES
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
UNITED STATES PENITENTIARY
MARION, ILLINOIS
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 2343
COUNCIL OF PRISON LOCALS
COUNCIL 33
(Union)

0-AR-3930

_____

DECISION

September 13, 2006

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope, Member

I.      Statement of the Case

      This case is before the Authority on exceptions to an award of Arbitrator George Deretich filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

      The grievance concerned overtime compensation for employees at the United States Prison Marion (USP Marion) under the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201 et seq., and the Portal-to-Portal Act (Act), 29 U.S.C. § 254. The Arbitrator sustained the grievance in part and denied it in part, ordering back pay for those employees who were entitled to overtime as a remedy.

      For the following reasons, we deny the Agency's exceptions.

II.      Background and Arbitrator's Award

A.      Background

      AFGE, Local 2343 (Union) is part of a consolidated unit that is represented by the Council of Prison Locals, AFGE (National Union), which holds exclusive recognition at the national level of the Agency. The local Union is permitted to "negotiate and maintain [local] labor relations so long as [there is no] conflict with the national Master Agreement" (CBA). The grievance involved here pertains only to unit employees located at the Agency's Marion, Illinois facility (USP Marion), who perform various functions throughout USP Marion.

      In May 1995, the National Union filed a bargaining unit-wide grievance alleging that the Agency failed to properly compensate employees for pre- and post-shift activities under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., including the Portal-to-Portal Act (Act), 29 U.S.C. § 254, and the Federal Employees Pay Act (FEPA), as amended, 5 U.S.C. §§ 5542, 5543, 5546 et seq. Subsequently, in November 1995, the Agency issued Operations Memorandum 214-95 (3000) (Operations Memo) relating to the establishment and implementation of starting and quitting times of work shifts. In April 1996, the Operations Memo was incorporated into the Agency's Human Resources Manual (HRM 610.1).

      On April 8, 1999, the then-incumbent warden at USP Marion issued a memorandum (the April 8 memo) noting that USP Marion had not been in compliance with HRM 610.1 but that it had negotiated new procedures with the Union. See Exceptions, Attachment Joint Exhibit 10. On April 12, 1999, the Union filed a grievance seeking appropriate compensation for pre- and post-shift activities since the issuance of the Operations Memo in November 1995. In May 1999, the Agency contacted the Union about attempting to settle the nationwide grievance and, among other things, requested that the Union amend the 1999 grievance to show an end date of April 8, 1999. The Union agreed to that amendment (amended 1999 grievance).

      In August 2000, the Agency and the National Union settled the bargaining unit-wide grievance (Settlement Agreement). The Settlement Agreement provided compensation "to settle all wage claims [of bargaining unit employees] covering the period from May 17, 1989 through January 1, 1996." Award at 8. The Settlement Agreement also identified five Agency facilities, including USP Marion, that may not have complied with Operations Memo/HRM 610.1 "on or before January 1, 1996." Id. Specifically, Provision 7 of the Settlement Agreement provided:

The Parties agree that the following five institutions (USP Marion, USP Leavenworth, FCI Milan, FCC Colorman, and Florence ADJC) may not have implemented changes to comply [ v61 p766 ] with section 610.1 of the Human Resource Manual before January 1, 1996. If changes were not made to comply with section 610.1 of the [HRM], negotiations at the local level for these five institutions, will take place to negotiate any payment due bargaining unit members for the period between January 1, 1996 and the implementation date, if any, of pre and post procedures to comply with section 610.1 of the [HRM]. These negotiations will take place as soon as possible.

Exceptions, Attachment H at 2. See also Award at 8.

      Subsequently, the Agency and the Union attempted to negotiate an additional settlement as envisioned in the Settlement Agreement, but were unable to do so. On March 27, 2001, the Union filed an additional grievance seeking overtime compensation (2001 grievance) for the period "April 9, 1999 to the present date." Award at 57 (quoting the 2001 grievance, Exceptions, Attachment Joint Exhibit 8). The amended 1999 grievance and the 2001 grievance were subsequently submitted to arbitration.

B.      Arbitrator's Award

      As relevant here, the Arbitrator framed the issue in the case as follows:

Whether any Union members who are employed at USP Marion were not appropriately paid for overtime work, and, if so, what should be the appropriate remedy.

Award at 6. [n1]  More specifically, the Arbitrator defined the issue as "a question of `portal to portal' pay" concerning the amount of time for which the employees covered by the grievances "must be compensated based on the beginning and ending of their respective shifts." Id.

      The Arbitrator concluded that the case before him presented "a single continuing grievance" involving questions of compliance in "two separate time periods[.]" Id. at 59. The Arbitrator divided his award into two parts: (1) the amended 1999 grievance; and (2) the 2001 grievance.

1.     The Amended 1999 Grievance

      The Arbitrator found that the amended 1999 grievance was an "extension" of the national level grievance, which was resolved by the Settlement Agreement. Id. at 51. Moreover, he stated that the National Union and the Agency, in the Settlement Agreement, "could not predict when compliance by" USP Marion would take place and, thus, "[t]here is no end date to how long a period of time local employees could make claims for non-compliance." Id. at 59. In this regard, he noted that Provision 7 of the Settlement Agreement specifically authorized claims by employees at USP Marion after the period covered by the Settlement Agreement if the policies and procedures concerning starting and ending times of shifts specified in the Operations Memorandum and HRM 610.1 had not been implemented at USP Marion as of January 1, 1996. In concluding that HRM 610.1 had not been implemented at USP Marion, the Arbitrator noted the admission in the April 8, 1999 memo that USP Marion was not in compliance with HRM 610.1 as of that date.

      The Arbitrator found that it was "indisputable," based on employee testimony and Agency documentation, that employees "were working more than eight hours [per day] during the period from January 1, 1996 to April 8, 1999." Id. at 59. In this regard, the Arbitrator found that, during that period, "USP Marion was having problems regarding shift starting and stopping times as it relates to working a shift of eight (8) hours." Id. at 60. Specifically, as evidence, he referenced the April 8 Memo and the Settlement Agreement, both of which, according to the Arbitrator, in one way or another, acknowledged that USP Marion was not in compliance with applicable shift policies and procedures. Consequently, the Arbitrator concluded that between January 1, 1996 and April 8, 1999 employees continued to work uncompensated overtime.

      As to the amount of compensation due employees for overtime work during the period January 1, 1996 to April 8, 1999, the period covered by the amended 1999 grievance, the Arbitrator found that the "same problems" that existed in the Settlement Agreement as to which employees were entitled to overtime and the amount thereof were present during that period as well. Id. at 61. In this regard, the Arbitrator found that the Settlement Agreement awarded each employee 30 minutes of overtime per shift worked. According to the Arbitrator, because the Settlement Agreement acknowledged that the same circumstances continued to exist in USP Marion, among other institutions, "those circumstances cannot logically be viewed or treated differently [ v61 p767 ] from the settlement formula applied in the [Settlement Agreement]." Id. at 62.

2.     The 2001 Grievance

      The Arbitrator stated that the second part of the award would address claims relating to the period after April 8, 1999, the period covered by the 2001 grievance. He noted that, while the April 8 memo referenced negotiated shift policies and procedures subsequent to April 8, 1999, questions remained as to whether and when USP Marion had actually complied with HRM 610.1. The Arbitrator found that resolution of this part of the award would of necessity be based exclusively on the record at the arbitration hearing.

      The Arbitrator found that the Union requested information in 2000 regarding the "upcoming negotiations" that were subsequently mandated by the Settlement Agreement. The Arbitrator also noted that the Union requested 15 minutes of overtime per shift for all departments at USP Marion. As the Union asked for information only relating to eight (8) of the departments at USP Marion, the Arbitrator stated that any compensation awarded for this period would be granted "on an equal basis among those employees in those respective departments in relation to the amount of hours each employee has worked in the time period covered." Id. at 52. The Arbitrator also found that the changes in shift procedures that took effect on April 8, 1999, "resulted in employees spending less time in compensable work." Id. at 62. However, he found that there was no evidence of records or record keeping that would provide a basis for an accurate determination of compensation. He concluded, therefore, that any award rendered would have to be determined "conceptually." Id. at 63. According to the Arbitrator, the result of such a determination would be an award that was "figurative," not "actual," but he concluded that such an award would "have to suffice." Id.

      The Arbitrator then considered each of the departments at USP Marion concerning which the Union had presented evidence. Beginning with the Custody Department, the Arbitrator found that employees in the department were entitled to overtime pay because there was "a sufficient showing that staff in this department do work in excess of eight hours and that their excess time worked is more than de minimis." Id. at 71. Specifically, the Arbitrator found that, although shifts did not officially begin until the time employees reported to their assigned post, a change in shift at the post required an exchange of equipment, an inventory of equipment, and an exchange of information. The Arbitrator found that these activities are "integral to the job[.]" Id. at 73. The Arbitrator noted, in this regard, that, absent such an inventory, the "relieving officer" would be held responsible for missing inventory and thus ran the risk of discipline if the inventory was not done. Id. The Arbitrator concluded that "it still takes at least 15 minutes or more to make a relief at a 24-hour duty post even with the equipment placed at the post." Id. at 74. The Arbitrator also found that the Agency had made stopping at the Lieutenant's office to read post orders and check their mailboxes before reporting to the Control Center, and then proceeding to their posts, a "principal activity" for employees in the Custody Department. Id. at 72. He stated that this requirement did not "appear to play a sustaining significant part in overtime." Id. He agreed with the Agency that "it does not take a large deal of time to read the post orders on a daily basis." Id.

      As to UNICOR and the Facilities Department, both of which employ inmates, the Arbitrator found that, in order to ensure that equipment and materials were ready for the inmates to begin work when they reported, the staff checks in at the Control Center well before the scheduled beginning of the shift. Based on the evidence presented, the Arbitrator concluded the staff in those departments "have worked more than eight hours with the knowledge of the Agency." Id. at 81.

      The Arbitrator found that staff in the Education Department, E-Code, Food Service Department, Financial Management Department, and Unit Management Department substantially adhere to their scheduled shift hours and concluded that they are not entitled to overtime pay. The Arbitrator found that there was no clear evidence or testimony demonstrating that staff in these departments worked in excess of eight hours. Id. at 89.

      The Arbitrator concluded by noting that the Union had requested overtime up to the point at which the Agency is in compliance with relevant pay statutes. The Arbitrator stated that he could only render an award based on the evidence at the hearing and that his award could not extend beyond that date. He found, therefore, that his award covered the period from April 8, 1999 up to the adjournment of the hearing on November 13, 2003.

      As his award, the Arbitrator found that: (1) employees at USP Marion are entitled to 30 minutes of overtime for the period January 1, 1996 to April 8, 1999; (2) employees in the Custody Department, UNICOR, and the Facilities Department are entitled to overtime as specified in his decision for the period from April 8, 1999 to November 13, 2003; and (3) employees in the Education Department, E-Code, the Food Service Department, the Financial Management Department, and the Unit Management Department are not entitled to [ v61 p768 ] overtime for the period from April 8, 1999 to November 13, 2003.

III.      Positions of the Parties

A.      Agency's Exceptions

1.      Nonfact

      The Agency contends that the award as to the amended 1999 grievance is deficient under § 7122(a)(2) of the Statute because it is based on a nonfact. According to the Agency, the nonfact rendering the award deficient is the Arbitrator's conclusion that the amended 1999 grievance is an extension of the Settlement Agreement. In this regard, the Agency maintains that, by entering into the Settlement Agreement, it did not admit any liability for overtime compensation. Moreover, the Agency asserts, the Settlement Agreement explicitly states "that it constituted the complete terms of the settlement and superseded any and all prior oral or written representations, understandings, or agreements between the parties." Exceptions at 8. The Agency argues that because of the Arbitrator's reliance on "this nonfact," he made no independent findings and did not apply the FLSA statute of limitations, thus improperly failing to limit any overtime awarded. Id.

2.     Contrary to Law

      The Agency contends that the award as to the amended 1999 grievance is deficient under § 7122(a)(1) of the Statute because it is contrary to the FLSA. Specifically, the Agency maintains that, under the FLSA, in order for employees to be entitled to overtime compensation, the employees "must prove by [a] preponderance of the evidence that [they have] in fact performed work for which [they were] improperly compensated" and must "produce sufficient evidence to show the amount and extent of that work[.]" Id. at 9. According to the Agency, in resolving the amended 1999 grievance, the Arbitrator awarded overtime compensation to employees in all departments. However, the Agency asserts, the Arbitrator found that there was no way to determine if employees in departments at USP Marion who were not included in the testimony at the hearing were entitled to overtime. Thus, the Agency maintains, the Arbitrator's own findings demonstrate that he was not able to determine which employees covered by the amended 1999 grievance should be awarded overtime consistent with the FLSA.

      The Agency also contends that the award is contrary to the statute of limitations prescribed by the FLSA because, in resolving the amended 1999 grievance, the Arbitrator awarded overtime compensation retroactive to January 1, 1996. Citing NTEU, 53 FLRA 1469 (1998), the Agency argues that the Authority has held that arbitrators are obligated to apply the statute of limitations set forth in 29 U.S.C. § 255(a) (§ 255(a)). [n2]  In this regard, the Agency maintains that the Arbitrator failed to make the required determinations in order to resolve whether the award should encompass two or three years of overtime liability. Specifically, the Agency contends that the recovery period granted could extend only from April 12, 1997 or April 12, 1996. In either case, the Agency argues, by awarding overtime compensation retroactive to January 1, 1996, "the Arbitrator extended the recovery period contrary to [§ 255(a)]." Exceptions at 12.

      Further, the Agency contends that the award is deficient because it awards overtime compensation for preliminary and postliminary activities contrary to 29 U.S.C. § 254(a) (§ 254(a)). [n3]  In addition, the Agency claims that the award is inconsistent with HRM 610.1, an Agency regulation, which defines shift starting and quitting times as the point at which the employee picks up and drops off equipment. The Agency also claims that the award is inconsistent with court decisions that have "defined the starting and ending point of an employee's work day as where he picks up equipment." Id. at 14 (citing Amos v. United States, 13 Cl. Ct. 442 (1987) (Amos). In this regard, citing United States Dep't of Justice, Fed. Bu. of Prisons, United States Penitentiary, Terre Haute, Ind., 58 FLRA 327 (2003) (Terre Haute), the Agency asserts that the Authority has held that "the legislative history of § 254 identifies `checking in or out' as non-compensable." Id. at 15. For these reasons, the Agency contends that the award of compensation to all bargaining unit employees is contrary to law and regulation.

      As to the 2001 grievance in particular, the Agency contends that the award violates § 254(a) because it [ v61 p769 ] "grants overtime compensation to those employees who obtain their equipment and keys at their posts." Id. at 13. In this regard, the Agency references 5 C.F.R. § 551.412(b), which defines preliminary and postliminary activity as a "preparatory or concluding activity that is not closely related to the performance of the principal activities[.]" [n4]  Id. at 13 (quoting 5 C.F.R. § 551.412(b)).

      As to employees who pick up their equipment at their posts, the Agency asserts that overtime compensation for that activity is not compensable because such employees are "not engaged in work." Id. at 15-16 (citing Holzapfel v. Town of Newburgh, New York, 145 F.3d 516 (2nd Cir. 1998)). In this regard, the Agency argues that time spent passing through the Control Center, without picking up equipment, is not compensable. Specifically, according to the Agency, the court in Amos held that if employees did not have to pick up equipment at the Control Center, "time spent passing through the Control Center and walking to their duty station clearly would not be compensable." Id. at 15.

      Finally, the Agency contends that the Arbitrator erroneously awarded overtime compensation to employees in the Custody Department, UNICOR, and the Facilities Department for the time spent at the Lieutenant's Office prior to picking up their equipment. According to the Agency, the time spent at the Lieutenant's Office is not related to employee's principal activities and is not required by the Agency.

B.      Union's Opposition

      The Union contends that the Arbitrator's award as to the amended 1999 grievance is not deficient because the Arbitrator referenced the Settlement Agreement in rendering the award. The Union asserts that the Arbitrator based this portion of the award on "testimony and documentary evidence" presented at the hearing. Opposition at 9. Specifically, the Union maintains that management of USP Marion did not, until April 8, 1999, change the practices and procedures regarding the beginning and ending of shifts that were in effect during the period covered by the Settlement Agreement. The Union asserts that the amended 1999 grievance was an "outgrowth" of the earlier national grievance that was resolved by the Settlement Agreement and contends that "[i]t was not improper for the [A]rbitrator to consider the Settlement Agreement where the subject matter of [that] agreement was related to" the amended 1999 grievance. Id. at 11.

      Regarding the Agency's claim that the Arbitrator erred as a matter of law in determining the compensation due employees covered by the amended 1999 grievance, the Union contends that the Arbitrator adhered to "FLSA guidelines and precedent[.]" Id. In this regard, the Union asserts that: (1) it is the Agency's duty to maintain accurate and complete records; (2) evidence does not need to be presented with respect to every employee affected, "as long as the evidence is fairly representative of the employees involved," id. at 12; and (3) in the absence of accurate and complete Agency records, the amount of overtime compensation owed employees may be determined by drawing a "`just and reasonable'" inference from the Union's evidence. Id. (citing Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687-88 (1946) (Mt. Clemens)).

      In response to the Agency's claim that the award is contrary to § 255(a), the FLSA statute of limitations, the Union notes that the Settlement Agreement preserved any claims for overtime compensation at USP Marion from January 1, 1996 until USP Marion adopted policies and practices regarding shift beginning and ending times that were consistent with HRM 610.1. According to the Union, the Arbitrator, in interpreting this portion of the Settlement Agreement, found that the Agency had waived any time limits for filing such FLSA claims. The Union maintains that this procedural ruling by the Arbitrator is not subject to review by the Authority because it is not a "legal determination[.]" Id. at 16.

      Further, the Union contends that the Arbitrator properly awarded overtime compensation to employees who exchange their equipment at their duty posts. According to the Union, such activities are compensable "because they are an integral part of the principal activity[.]" Id. The Union analogizes those activities to picking up and returning keys, collecting equipment, and walking between a central control room and a post of duty, all of which have been held to be compensable under the FLSA because they are closely related activities indispensable to the performance of the principal duties of employees. The Union also argues that the Arbitrator found that exchanging equipment at the post of duty, conducting an inventory of equipment, and briefing the relief employee took more than a de minimis amount of time.

      Finally, the Union asserts that the Arbitrator properly awarded overtime compensation to employees who stopped at the Lieutenant's Office either before or after picking up equipment at the Control Center and heading [ v61 p770 ] to their post of duty. According to the Union, the Arbitrator specifically found that employees were required to stop at that office and check their mailboxes upon arriving at work. The Union maintains that the requirement of reading work-related information is a compensable duty under the FLSA. [n5]  The Union distinguishes Terre Haute on the ground that the employees in that case were simply checking in to work instead of obtaining and reading work-related mail. In this regard, the Union cites Lindow v. United States, 738 F.2d 1057 (9th Cir. 1984), in which the court held that reading a log book at the beginning of a shift was a necessary and integral part of the employee's principal activities. Moreover, the Union asserts, the amount of time spent in the Lieutenant's Office must be added to the other pre-shift activities employees perform so as to result in more than a de minimis amount of time.

IV.      Analysis and Conclusions

A.     The Award is not Deficient on the Grounds of Nonfact

      To establish that an award is deficient because it is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See, e.g., United States Dep't of Veterans Affairs, VA Pittsburgh, Healthcare System, 60 FLRA 516, 518-19 (2004) (Chairman Cabaniss concurring on other matters) (citing Soc. Sec. Admin. Office of Hearings and Appeals, 58 FLRA 405, 407 (2003)). The Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties disputed at hearing. See id. In addition, an arbitrator's interpretation of a collective bargaining agreement is not subject to challenge as a nonfact. See id.

      The Agency contests the Arbitrator's determination that the Settlement Agreement applies to the amended 1999 grievance on the grounds that that determination constitutes a nonfact. However, the Agency raised and litigated that claim before the Arbitrator. Transcript at 1278-1293. Consequently, the Agency's exception fails to establish that the award is deficient because it is based on a nonfact. See United States Dep't of the Treasury, IRS, Oxon Hill, Md., 56 FLRA 292, 298 (2000).

      Moreover, the Arbitrator's determination as to the applicability of the Settlement Agreement to the amended 1999 grievance was based on his interpretation of section 7 of the Settlement Agreement. An arbitrator's interpretation of a settlement agreement cannot be challenged as a nonfact. See AFGE, Local 2501, 56 FLRA 1052, 1054 (2001) (citing United States Dep't of the Air Force, Warner Robins Air Logistics Ctr., Robins AFB, Georgia, 56 FLRA 498, 501 (2000)). See also United States Dep't of Health and Human Services, SSA, Baltimore, Md., 49 FLRA 858, 865 (1994).

      Accordingly, we deny the Agency's exception that the award is deficient on the ground of nonfact.

B.     The Award is not Contrary to Law

      The Agency contends that the Arbitrator's award is contrary to the FLSA, as amended by the Act. When a party's exception involves an award's consistency with law, the Authority reviews any question of law raised by the exception and the award de novo. See NTEU, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994). In applying the standard of de novo review, the Authority determines whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See, e.g., United States Dep't of Justice, Federal Bu. of Prisons, United States Penitentiary, Terre Haute, Ind., 58 FLRA 327, 329 (2003). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.

1.     Applicable Legal Framework

      Congress passed the FLSA to "guarantee[] compensation for all work or employment engaged in by employees covered by the [FLSA]." Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 602 (1944) (Tennessee Coal). Congress subsequently amended the FLSA by passing the Act, distinguishing between "the principal activity or activities that an employee is hired to perform," which are compensable, and "activities which are preliminary to or postliminary to said principal activity or activities," which are not compensable. 29 U.S.C. § 254(a)(1)-(2)." See AFGE, Local 1482, 49 FLRA 644, 646-47 (1994); GSA, 37 FLRA 481, 484 (1990) (GSA). See also Reich v. New York City Trans. Auth., 45 F.3d 646, 649 (2nd Cir. 1995) (Reich). In Steiner v. Mitchell, 350 U.S. 247 (1956) (Steiner), the Court clarified that a given activity constitutes a "principal activity," as opposed to a preliminary or postliminary task, if it is "an integral and indispensable part of the principal activities for which [ v61 p771 ] covered workmen are employed[.]" Id. at 256. See also GSA, 37 FLRA at 484 (quoting 5 C.F.R. § 551.412(a)).

      In determining whether given activities are an integral and indispensable part of employees' principal activities, "what is important is that such work is necessary to the business and is performed by the employees, primarily for the benefit of the employer, in the ordinary course of that business." Dunlop v. City Electric Inc., 527 F.2d 394, 401 (5th Cir. 1976) (Dunlop). Further, preliminary or postliminary activities that are integral and indispensable to an employee's principal activity or activities are themselves principal activities under the Act. IBP, Inc. v. Alvarez, et al., 126 S. Ct. 514 (2005) (Alvarez). Thus, as the Supreme Court held in Alvarez, "during a continuous workday, any walking time that occurs after the beginning of the employee's first principal activity and before the end of the employee's last principal activity . . . is covered by the FLSA." Id. at 525.

      Employees have the burden of establishing under the FLSA that they have performed work for which they have not been properly compensated. Mt. Clemens, 328 U.S. at 687. Employers have the duty under the FLSA of maintaining proper records of wages, hours and other conditions and practices of employment. Id. at 687. Where such records are not available, employees may meet their burden by showing that they have been improperly compensated if they produce sufficient evidence "to show the amount and extent of that work as a matter of just and reasonable inference." Id. Testimonial evidence may be sufficient evidence and it is not necessary that all similarly situated employees testify in order to be covered by any subsequent award. See, e.g., Reich v. Gateway Press, Inc., 13 F.3d 685, 701-02 (3rd Cir. 1994); Martin v. Selker Bros., Inc., 949 F.2d 1286, 1298 (3rd Cir. 1991); Herman v. Hector I. Nieves Transport, Inc., 91 F. Supp. 2nd 435, 446 (D.C. D. Puerto Rico 2000). See also Donovan v. Simmons Petroleum Corp., 725 F.2d 83, 86 (10th Cir. 1983) (court found it sufficient that at least one employee at each service station testified).

      Where an employer is unable to produce sufficient evidence of the precise amount and extent of employees' work, damages may be awarded to employees "even though the result [may] be only approximate." Mt. Clemens, 328 U.S. at 688. It is sufficient in such circumstances that "there is a basis for a reasonable inference as to the extent of damages." Id. Stated differently, where an "`approximate [] award based on reasonable inferences' forms a satisfactory surrogate for unquantified and unrecorded `actual' times, an approximated award is permissible." Alvarez v. IBP, Inc., 339 F.3d 894, 915 (9th Cir. 2003) (quoting Brock v. Seto, 790 F.2d 1446, 1449 (9th Cir 1986)).

      Under the FLSA claims must be filed within two years of the date on which the cause of action accrues, unless the denial of overtime compensation is willful, in which case, the claim may be filed within three years after the date the cause of action accrues. § 255(a). In addition, § 255(a) limits the period of recovery for ongoing violations committed prior to the filing of the claim. See NTEU, 53 FLRA at 1494. The Authority has held that § 255(a) is a limited waiver of sovereign immunity and should not be extended beyond the terms thereof. Id.

2.      The Award as to the Amended 1999 Grievance is not Deficient under the FLSA, as amended by the Act

      For the following reasons, we reject the Agency's claims that the award as to the 1999 grievance is deficient because the Arbitrator awarded overtime compensation to employees in all the departments at USP Marion without making the requisite findings under the FLSA, as amended by the Act, and because it provides compensation for preliminary and postliminary activities to all bargaining unit employees.

      The Arbitrator found, as noted above, that it was indisputable, based on employee testimony and Agency documentation, that employees were working more than eight hours per day during the period from January 1, 1996 to April 8, 1999. More specifically, the Arbitrator found that the Union presented evidence that showed that employees reported early in order to obtain required equipment, conduct the required inventory of tools or inspection of facilities, and exchange information with the personnel that they were to relieve. See Award at 22-23, 43 and Appendix to the Award at 12-13. The Arbitrator's findings show that if these things were not accomplished prior to the established starting times, then work would be delayed, often affecting other operations at the penitentiary. See id. at 43 and Appendix to the Award at 12-13, 25. Moreover, the Arbitrator specifically found that circumstances at USP Marion during the period covered by the amended 1999 grievance had not changed from the period covered by the Settlement Agreement and, based on that fact, 30 minutes of overtime was a reasonable estimate of the amount of compensable overtime for the period of the amended 1999 grievance.

      As to the Agency's contention that the award is inconsistent with Amos, the Arbitrator concluded that [ v61 p772 ] the time employees spent in pre-shift and post-shift activities related to the performance of their jobs during the period covered by the 1999 grievance, that these activities were primarily for the benefit of the employer and, thus, constituted "work" within the meaning of the FLSA, as amended by the Act. Thus, this case is consistent with Amos because in that case the pre-shift and post-shift activities claimed to be compensable were determined to constitute work under the FLSA, as amended by the Act. This case is also distinguishable from Terre Haute because the pre-shift and post-shift activities in that case were determined not to constitute work.

      The Agency has failed to demonstrate that the Arbitrator's findings concerning the amount of overtime work performed by unit employees during the period covered by the 1999 grievance are based on insufficient evidence. Consequently, the Agency's exception concerning the Arbitrator's alleged failure to make the requisite findings under the FLSA, as amended by the Act, and its claims concerning preliminary and postliminary activities, do not provide a basis for finding the award deficient.

      Accordingly, we deny the Agency's contrary to law exception with respect to the amended 1999 grievance.

3.      The Arbitrator's Award does not Violate the FLSA's Statute of Limitations

      As noted above, § 255(a) not only limits the period within which a claim for damages under the FLSA, as amended by the Act, can be filed, it also limits the period for which employees can recover damages for violations which occurred prior to the filing of the claim. As to the Agency's exception asserting that the award of overtime for the period covered by the amended 1999 grievance exceeds the statutory limitation period, we find that the exception misconstrues the nature of the award.

      In this regard, the Arbitrator stated that the Union filed a national level grievance under the FLSA, as amended by the Act, on May 17, 1995, seeking damages for overtime worked by unit employees, including employees at USP Marion. Thus, at the time the Union filed its April 12, 1999 grievance (the amended 1999 grievance) the USP Marion employees had a pending FLSA grievance (by virtue of the bargaining unit-wide grievance filed in 1995) with a recovery period already extending back to January 1, 1996 and earlier. Moreover, the Arbitrator found that it constituted "a single continuing grievance" covering "two separate time periods," during which it is alleged that USP Marion was not in compliance with applicable requirements concerning starting and quitting times. Award at 59. Finally, when the parties settled the bargaining unit-wide grievance in 2000 they expressly allowed the USP Marion employees (and employees at certain other locations) to continue to pursue their entitlements under the bargaining unit-wide grievance beyond the January 1, 1996 closure date. Consequently, we conclude that the amended 1999 grievance's award of back pay under the FLSA back to January 1, 1996 does not violate the FLSA's statute of limitations because the recovery period for the USP Marion employees' already-pending FLSA claim permitted recovery back to January 1, 1996. Thus, the Agency fails to demonstrate that the award is contrary to § 255(a).

      Accordingly, we deny the Agency's contrary to law exception based on § 255(a).

4.     The Award as to the 2001 Grievance is not Deficient

      The Agency contends that the Arbitrator's award as to the 2001 grievance is contrary to § 254(a) because it provides compensation for preliminary and postliminary activities to employees who report directly to their posts. Specifically, the Agency argues that the award improperly provides compensation for activities that are not closely related to employees' principal activities.

      As noted above, under the FLSA, as amended by the Act, a given activity constitutes a principal activity if it is an integral and indispensable part of the principal activities for which employees are employed. See, e.g., Steiner, 350 U.S. at 256. To be an integral and indispensable part of employees' principal activities, the work in question must be necessary to the job being performed and primarily for the benefit of the employer. See, e.g., Reich, 45 F.3d at 650; Dunlop, 527 F.2d at 401.

      Insofar as the Custody Department is concerned, where employees as of April 12, 1999, were required to report to their post of duty, the Arbitrator found that the relieving officer, and the relieved officer, conducted an exchange of equipment, an inventory of equipment, and an exchange of information. The Arbitrator found that these activities were integral to the job, noting that employees ran the risk of discipline for missing equipment if such inventories were not done. See, e.g., Ballaris v. Wacker Siltronic Corp., 370 F.3d. 901, 911 n.14 ((9th Cir. 2004) ("evidence that an employee has been disciplined for the failure to follow a clear rule established by a company would weigh in favor of a finding [ v61 p773 ] that the activities are `integral and indispensable'"). The Arbitrator concluded that the process of relieving an officer at a post of duty required at least 15 minutes in addition to the regularly scheduled tour.

      The Arbitrator's factual findings support his legal conclusion that the activities conducted upon relief at a post of duty are integral to the work performed by employees. The exchange of equipment, the inventory of equipment, and the exchange of information concerning operations at the post are clearly necessary to the job being performed at the post and are conducted primarily for the employer's benefit. Otherwise, there would be no risk of discipline from the employer. Given the nature of these findings, the Agency has provided no basis for its claim that the activities conducted upon relief of a post in the Custody Department do not constitute employees' principal duties. Thus, the Agency has not demonstrated that the Arbitrator erred in concluding that the activities are not preliminary or postliminary and that those activities are compensable under the FLSA, as amended by the Act.

      Additionally, the Agency claims that the award is inconsistent with 5 C.F.R. § 551.412(b). Section 551.412(b), provides, in part, that "[t]ime spent in preliminary or postliminary activities is excluded from hours of work and is not compensable . . . ." 5 C.F.R. § 551.412(b). As found above, the Agency has not established that the activities in dispute constitute preliminary or postliminary activities. Rather, the Arbitrator's factual findings support his legal conclusion that such activities are integral to the work performed by employees and thus, are compensable under the FLSA, as amended by the Act. Accordingly, the Agency has failed to demonstrate that the award is inconsistent with 5 C.F.R. § 551.412(b). As to the Agency's claim that the award is inconsistent with HRM 610.1, the Arbitrator pointed out that HRM 610.1 permitted shifts to begin when an employee reports to a post to relieve the officer on duty. Nothing in the section authorizing such a starting time dictates the activities that must take place to constitute compensable work.

      To the extent that the Agency's arguments regarding time spent at the Control Center not being compensable are intended to apply to the Arbitrator's findings with respect to UNICOR and the Facilities Management Departments, the arguments fail to demonstrate that the award is deficient. The Arbitrator found that employees in these Departments reported early in order to complete work that is necessary in preparation for the arrival of inmate crews to work. His findings in this connection do not depend on whether, or the extent to which, those employees had to go through the Control Center to pick up keys and equipment. [n6] 

      The Agency's arguments concerning the Arbitrator's findings as to employees reading post orders at the Lieutenant's office do not provide a basis for finding the award deficient. Specifically, nothing in the award suggests that the Arbitrator found that those activities constituted a basis for his award. In the first place, the Arbitrator's findings in this regard were limited to the Custody Department. Moreover, the Arbitrator, although finding that the Agency required employees to report to the Lieutenant's office for that purpose, agreed with the Agency that "reading [the] post orders" did not take much time. Award at 72. In addition, the Arbitrator's findings do not appear to factor into his award of overtime for employees in the Custody Department. Rather, his award of 15 minutes of overtime for those employees is based on his findings as to the amount of time that is needed to conduct activities associated with the "relief" of a post of duty, activities, as noted above, which he found to be integral to the work performed at such posts. Id. at 74.

      Accordingly, we deny the Agency's exceptions as to the 2001 grievance.

      In sum, we deny the Agency's exception that the award is deficient under § 7122(a)(2) because the Arbitrator's determination regarding the applicability of the Settlement Agreement to the amended 1999 grievance constitutes a nonfact. We also deny the Agency's exceptions under § 7122(a)(1) that the award as to the amended 1999 grievance is contrary to law. Specifically, we reject the Agency's contentions that: (1) the Arbitrator failed to make the requisite findings under the FLSA and the Act; and (2) the award violates the FLSA's statute of limitations. Finally, we deny the Agency's exceptions under § 7122(a)(1) with respect to the 2001 grievance.

V.     Decision

      The Agency's exceptions are denied. [ v61 p774 ]


APPENDIX

1.      Section 2 of the Operations Memorandum provides as follows:

2.      SCHEDULING CONSIDERATIONS
     a.      An institution employee whose shift starts at 7:30 a.m. must be at the control center and have received his/her equipment no later than 7:30 a.m. to be considered "on time" for the start of his/her shift. To accomplish this, each location should ensure minimum waiting time for the employee in the key line.
     If that same employee's shift ends at 4:00 p.m., he/she should drop-off his/her keys/equipment in the control center at 4:00 p.m., the scheduled quitting time. Reasonable travel time to and from the duty post to the control center would be compensable as part of the employee's tour of duty. Local supervisors should establish expectations that require employees to arrive and leave their duty post in a timely manner. Once local practices are reviewed and modified (if necessary), employees shall be notified of these parameters and shall be responsible for entering and exiting the institution on time.
     b.      Due to these parameters, schedules may have to be adjusted and shifts overlapped for posts which require relief, as employees must be given time to arrive later and leave earlier to be at the control center on time. The length of time necessary to provide overlap depends on the post location and the reasonable travel time to and from the control center to that post. Attachment A is a sample Correctional Services roster which provides an example for accommodating the parameters. To provide overlap, the roster includes a lunch period for day watch posts and 15 minutes of overtime for morning watch posts.
     c.      Although waiting time in key lines prior to the beginning of a shift is not "work time", such waiting time is to be reduced to a minimum to assist a smooth transition from shift-to-shift and more timely and predictable movement from the control center to post. This can be accomplished through staggered shift starting and stopping times for day watch positions and placing additional personnel in the control center during busy shift changes.
     d.      Each institution should consider incorporating practices which include increased costs or resources only after all other options have been exhausted.

Exceptions, Attachment Joint Exhibit 11.

2.      HRM 610.1 provides, in relevant part, as follows:

610.1 INSTITUTION SHIFT STARTING AND STOPPING TIMES
. . . .
3.      CRITERIA. Each institution shall have approved work schedules with shift starting and stopping times, for employees who work at the institution, to begin and end at the point employees pick-up and drop-off equipment (keys, radios, body alarms, work detail pouches, etc.) at the control center. Therefore, employees who pick-up equipment at the control center, shall have their shifts scheduled to include reasonable time to travel from the control center to their assigned duty post and return (at the end of the shift). If an employee arrives at the key line in a reasonable time to get equipment by the beginning of the shift, this employee is not to be considered late.
. . . .
6.      SCHEDULING CONSIDERATIONS
     a.      An institution employee whose shift starts at 7:30 a.m. must be at the control center and have received his/her equipment no later than 7:30 a.m. to be considered "on time" for the start of his/her shift. To accomplish this, each location should ensure minimum waiting time for the employee in the key line.
If that same employee's shift ends at 4:00 p.m., he/she should drop-off his/her keys/equipment in the control center at 4:00 p.m., the scheduled quitting time. Reasonable travel time to and from the duty post to the control center would be compensable as part of the employee's tour of duty. Local supervisors should establish expectations that require employees to arrive and leave their duty post in a timely and reasonable manner. If an employee arrives at the key line in a reasonable time to get equipment prior to the shift, but does not receive the equipment by the beginning of the shift because of unforeseen circumstances, this employee is not to be considered late. [ v61 p775 ]
b.      Due to these parameters, schedules may have to be adjusted and shifts overlapped for posts which require relief, as employees must be given time to arrive later and leave posts earlier to be at the control center on time. The length of time necessary to provide the overlap depends on the post location and the reasonable travel time to and from the control center to that post.
     c.      Although waiting time in key lines prior to the beginning of a shift is not "work time", such waiting time is to be reduced to a minimum to assist a smooth transition from shift-to-shift and more timely and predictable movement from the control center to the post. One way to accomplish this is through staggered shift starting and stopping times for day watch positions and placing additional personnel in the control center during busy shift changes. Another option is to assign equipment and keys to posts. If appropriate, assign key ring to 24-hour posts instead of requiring staff to wait in key line to exchange their chit upon arriving and departing work.
     d.      Physical layout of facilities is to be taken into consideration when establishing a work schedule.
     e.      If one equipment issue pass is insufficient, institutions should consider installing a second equipment issue pass at the control center.
     f.      Compressed work schedules may be an appropriate option (follow procedures for compressed work approval).
     g.      Each institution should consider incorporating practices which include increased costs or resources only after all other options have been exhausted.
     h.      Overtime may be considered for certain posts/shifts; however, this option is not meant to restrict the employer's management of overtime.
Overtime regulations, procedures, and requirements are not affected by this policy.

Exceptions, Attachment Joint Exhibit 12.

3.      29 U.S.C. § 254(a) and (b) provide as follows:

§ 254. Relief from liability and punishment under the Fair Labor Standards Act of 1938, . . . for failure to pay minimum wage or overtime compensation
(a)      Activities not compensable
Except as provided in subsection (b) of this section, no employer shall be subject to any liability or punishment under the [FLSA] . . . on account of the failure of such employer to pay an employee minimum wages, or to pay an employee overtime compensation, for or on account of any of the following activities of such employee engaged in on or after May 14, 1947--
(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and
(2) activities which are preliminary to or postliminary to said principal activity or activities,
which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities. For purposes of this subsection, the use of an employer's vehicle for travel by an employee and activities performed by an employee which are incidental to the use of such vehicle for commuting shall not be considered part of the employee's principal activities if the use of such vehicle for commuting is within the normal commuting area for the employer's business or establishment and the use of the employer's vehicle is subject to an agreement on the part of the employer and the employee or representative of such employee.
(b)      Compensability by contract or custom
     Notwithstanding the provisions of subsection (a) of this section which relieve an employer from liability and punishment with respect to any activity, the employer shall not be so relieved if such activity is compensable by either--
(1) an express provision of a written or nonwritten contract in effect, at the time of such activity, between such employee, his agent, or collective-bargaining representative and his employer; or
(2) a custom or practice in effect, at the time of such activity, at the establishment or other place [ v61 p776 ] where such employee is employed, covering such activity, not inconsistent with a written or nonwritten contract, in effect at the time of such activity, between such employee, his agent, or collective-bargaining representative and his employer.

4.      5 C.F.R. § 551.412 provides, in relevant part, as follows:

§ 551.412 Preparatory or concluding activities.
(a)(1) If an agency reasonably determines that a preparatory or concluding activity is closely related to an employee's principal activities, and is indispensable to the performance of the principal activities, and that the total time spent in that activity is more than 10 minutes per workday, the agency shall credit all of the time spent in that activity, including the 10 minutes, as hours